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People v. Leo Leonard 92opn12

People v. Leo Leonard 92opn12

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Published by Leonard E Sienko Jr
a custodial parent can be convicted of kidnapping where the parent's actions are "so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody."
a custodial parent can be convicted of kidnapping where the parent's actions are "so obviously and unjustifiably dangerous or harmful to the child as to be inconsistent with the idea of lawful custody."

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Published by: Leonard E Sienko Jr on Jun 03, 2012
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09/12/2014

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=================================================================This opinion is uncorrected and subject to revision beforepublication in the New York Reports.-----------------------------------------------------------------No. 92The People &c.,Respondent,v.Leo Leonard,Appellant.Stuart M. Cohen, for appellant.Joan Gudesblatt Lamb, for respondent.SMITH, J.:This case raises the question of whether it is possiblefor a parent who has custodial rights to a child to be guilty ofkidnapping that child. We hold that it is possible, and that ithappened here, where defendant used his baby daughter as ahostage, threatening to kill her if the police approached him.- 1 -
 
- 2 -No. 92
I
Defendant had a romantic relationship with a woman whomwe will call Mary, which ended a few days after their daughterwas born. Mary then moved with the baby from Brooklyn, where sheand defendant had both been living, to Ulster County. There wasno court order affecting the custody of the child, so defendantand Mary were equally entitled to custody.When the baby was six weeks old, defendant paid anunexpected visit to Mary's new home. He and Mary had anargument, in the course of which he abused her verbally,threatened her with a knife, and cut her. He then calmed downand permitted Mary to leave for work, while the baby remainedwith him. Mary called her mother and a friend from her car, andthe friend called the police.Some time later, Mary's mother and stepfather came toMary's home and found defendant outside the house, holding thebaby. Shortly after that, Mary, her employer and several policeofficers arrived on the scene. At the sight of the police,defendant took out a knife and gestured toward the baby with it;still holding the baby, he retreated into the house. Therefollowed a lengthy discussion in a bedroom between defendant andthe police officers, during which defendant held the knife nearthe child's chest and throat, and told the officers that if theycame closer he would kill the child. He was finally persuaded togive the baby, unharmed, to the police.- 2 -
 
- 3 -No. 92Defendant was convicted of kidnapping in the seconddegree, as well as burglary, endangering the welfare of a childand two weapons offenses. The Appellate Division affirmed,holding among other things that the evidence of kidnapping waslegally sufficient (83 AD3d 1113 [3d Dept 2011]). A Judge ofthis Court granted leave to appeal (17 NY3d 818), and we nowaffirm.
II
Most people no doubt think they know what "kidnapping"means, but the term is a hard one to define. Penal Law § 135.20says simply: "A person is guilty of kidnapping in the seconddegree when he abducts another person." But the statutorydefinition of "abduct" is more complicated:"'Abduct' means to restrain a person withintent to prevent his liberation by either(a) secreting or holding him in a place wherehe is not likely to be found, or (b) using orthreatening to use deadly physical force."(Penal Law § 135.00 [2].)And the statutory definition of "restrain" is morecomplicated still:"'Restrain' means to restrict a person'smovements intentionally and unlawfully insuch manner as to interfere substantiallywith his liberty by moving him from one placeto another, or by confining him either in theplace where the restriction commences or in aplace to which he has been moved, withoutconsent and with knowledge that therestriction is unlawful. A person is somoved or confined 'without consent' when suchis accomplished by (a) physical force,intimidation or deception, or (b) any means- 3 -

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